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Show PAGE confusion in the testimony , , ns to whether both real and personal property . " and further " . . . that the jury was probably assessment rolls were used selected from only the assessment roll of real property owners; at least, the State failed to show that both rolls were used Sixteen jurors were called. The state eliminated four, as did defendant Darrew, by peremptory challenge. The trial court noted that eleven of the sixteen jurors selected were members of the church or about 69 per cent of the panel, which does not appear to be unusually disproportionate in the area. At any rate this fact was net urged as error. Of the eight jurors finally chosen and sworn, six were members of the church and two were net. The verdict rendered was unanimous. Each Mormon juror individually indicated he would net be biased or prejudiced by virtue of his church membership, nor would ho give more or less credit to a witness who was a member ef tiie church. ..... " Probabilities do not establish facts.6 When one attacks his conviction of crime on the method of jury selection, the burden is upon him to show that there was some impropriety and that there is at least some likelihood that there was unfairness to him so that he was deprived of his right of trial by an impartial 7 jury, a burden which defendant has not met. 2. See In re Richards' Estate, 5 Utah 2d 106, 297 P. $d 542, and authorities therein cited under footnote 13 thereof; 30 Am. Jur. 2d, Evidence, Sec. 1083; 32A The only point of importance for canvass on this appeal, succinctly and bluntly was posed in Darrow's brief which stated that "It strains credulity to believe that a member of the Mormon Church could be the kind of a juror contemplated by the Constitution and the Statute providing for challenges for cause or bias," since "The unfairness ef a Mormon sitting in judgment ef one charged with wrsngdoing concerning his Church's and his own property seems patently clear" because "The spirit and letter of the Constitution condemns such a practice." C.J.S., TQ. 7, et seq. Evidence, Sec. 1038, 3. State v. Beasley, ,22 Utah 2d 423, 454 P. 2d 880. 4. Sec. U. C.A.. 1953; and see Brown v. Allen, 344 U.S. 443, 474 78-46-- MONDAY, OCTOBER 12, 1970 THE DAILY RECORD FOUR 14, (1953). 5. See Hoyt v. Florida, 368 U.S. 57, 62. 6. See Alvarado v. Tucker, 2 Utah 2d 16, 268 P. 2d 986. 7. See Fay v. N.Y., 332 U.S. 261, 285; Glasser v. U.S., 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680; Tarrance v. Florida, 188 U.S. 519; U.S. v. Greenberg, 200 F.Supp. 382, 387; Woods v. Munns, 347 F. 2d 948 (10th Circuit 1965). i This quoted language appears to be an indictment of every Mormon that is so.unspeciflc and sweeping as to amount to what we consider to be an ecclssiaotical non sequitur. It is an ipse dixit that Imputes to every Mormon, or for that matter, every Catholic, every Protestant, and every Jew, ad infinitum, a congenital, ingrained or adopted dishonesty where his church's property and his own property are involved. The leveling of such a charge is as unorthodox and ungracious as the charge itself. We cannot accept defendant's premise on any legal, social, economic or religious grounds. I Defendant's complaint about admitting in evidence of the deceased after the shooting is that their tendency to inthe flame passions of the jury against him would outweigh any.. probative value they might have, citing State v. Poe.? There is some sort of paradox involved where one commits a heinous act and then complain that the very sight of what he has done is so revolting to the sensibilities of normal people (the jurors) that it would so distort their ' judg- ment that they could not fairly determine his guilt or innocence of crime. to prove all of the elements of tbs crime The prosecution was duty-bouby whatever evidence was available. This included the photographs.. The defendant is entirely. mistaken in asserting that because the fact of his fe was not disputed the pictures were not necessary . shooting his as proof. At the time the photographs were offered he had not so admitted and his counsel challenged through all testimony conof defendant the the the at scene crime. being cerning color-photograph- If defendant's urgonce seriously were indulged, this author and perhaps sufficient ethers on this court necessary to constitute a quorum, would be vulnerable te the same against every Mormon juror that took an oath te try the case strictly on the facts, without bias or prejudice of any kind. Z claim no greater Integrity for myself than I do for each of the jurors in this case, but if the personal integrity of any one of those jurors strains anyone's credulity because of having a built-i- n prejudice because of his religion, Z too must share the shame, since Zwas reared in the same faith, differing only, perhaps, by being condemned either jestingly or in ssrlesity by these who might tag me with the moniker of Jack Mormon. nd charge-levele- ex-wi- cross-examinati- on We have but recently pointed out that where pictures are probative on an essential issue they are not necessarily incompetent because they are gruesome; and that this is not changed because they are corroborative of other testimony. 9 As stated in the cases above referred to, the question ,as to the propriety of admitting such evidence is largely within the discretion of the trial court. Inasmuch as it does not appear there was. any abuse thereof its ruling thereon will not be disturbed. Zt is quits significant that the defendant did not assign as error on ap- peal any urgonce that the evidence adduced did not support his forgery Ha simply says it wasn't fair to be convicted by a jury on which a con-viotl- on. that evexy Mormon single Mormon would sit, baaed on counacl'a conclusively ie presumed to be dishonest in a :.6c like this. 'This is his only suggestion that defend, :it did not have a :air trial. Fie docs r.ot ever, claim the jury was unlawfully or unfairly selected from an appropriate list of citisens. iss-jM'.p.io- Finally, defendant claims error in giving instruction 12A concerning defendant's plea of insanity, specifically wherein the court essayed to explain that insanity is involved in determining the question of guilt or innocence only when it renders the accused irresponsible irresponsible, and indicated that it may be a complete defense, or reduce the degree of crime, or may have no bearing on the question. Without burdening this opinion with an extenuation of the sophistries of defendant's argument we dispose of that contention with two observations: First, there was no objection to the instruction in the court below, hence it will not be reviewed upon appeal unless it clearly appears that an. injustice Second, upon a review of resulted, a circumstance we do not find here. the total instructions, as given, the matter complained of in 12A was sufficiently explained. In instructions 12B and 12C the jury was adequately that the defendant should not be held responsible if he was insane; and that the evidence concerning it might be considered in reduction of the degree of the offense. On this point it is also significant that the evidence most favorable to defendant concerning insanity came from the expert called by the defense, who testified only that from the circumstances leading up to the crime would be very limited. " .We see no error prejudithe defendant's-"inhibitioncial to the defendant in the instructions given as related to the evidence. or-partl- : . It is even more significant that tide jury was ;r.ar Lnoua. If the Mormon members were biased, the same sort of syllogistic reasoning indulged by defendant would demand either that the two non Mormon jurors were 1) biased, as were the six Mormons, or were 2) fair, upright, honest and dandy, so that the six Mormons likewise must have been fair, upright, honest end dandy, or that 3) the six Mormons converted the two to Me r monism while they were in the jury room, thus infecting them with the lime presumed cholera of bias and prejudice with its malodorous atmosphere ef Incredulity. Thie author has yet to hear of a comereion instanter like that, and there is nothing in thie record to indicate that six of the jurora had been called to serve as missionaries for their church in this case, without purse or scrip, or intelligence, or integrity, or etc. non-Mormo- advised . . s Judgment affirmed. . WE CONCUR: E. R. Callister, ns It seems inescapable from the evidence reflected in this record and from the circumstance that defendant did not claim the facts relating to the forgery were Insufficient to establish the offense, to conclude other than that the objection to the jury here was but a tenuous point born of futility in finding a more substantial point, - or technicality, if you please, to justify an appeal. The claim that each juror had a pecuniary interest in the funds hypothecated by the forgery ia fallacious, since there ie nothing in this record that remotely indicates that each church member had or has an interest in the purloined or any other church funds, and no one, we think, justifiably could conclude that a member of the church had any interest in such funds in this case that could be the subject of assigiinieut ox sale in the market place. Jr., Justice R. L. Tuckett, Justice F. Henri Henriod, Justice WE CONCUR: A. H. Ellett, Justice E. R. Callister, 8. 21 Utah 2d 113, 441 P. 2d 512. 9. State v. Jackson, 22 Utah 2d 408, 454 P. 2d 290; see 21 Utah 2d 205. 443 P. 2d 392. 10. See State v. Taylor, 21 Utah 2d 425, 446 P. 2d 954, also State v. $enBO, Jr., Justice R. L. Tuckett, Justice and authorUies there cited. No. 11943 -- 3- ELLETT, Justice; (Concurring in the result) i T concur in the result but think the opinion overly dignifies the defend ant's assertion of error. Here in Utah wr. profess .r.d attempt fo practice religious tolerance equal to that in any other place on earth, and it would eeem that the claim of error made ie but the straw for whic fVe drowning - In The Supreme Court Of The State Of Utah, man grasps. The State of Utah, Plaintiff and Respondent, No. 12104 FILED v. October 8, 1970 LeMar Edward Kay and Seldon Clarence Darrow. Defendants and Appellant. L. M. Cummings, Clork HENRIOD. Justice: Appeal from a forgery conviction. The defendant's lawyer asserts that he i.an represent the client fairly because he has taken an oath as a lawyer to do no. it seems that he refuses to ascribe to the jurors the sunt degree of moiul integrity vhich he arrogates unto himself. Honesty should compel him to believe trial each juror would be mindful of his own oath to render a just aui true verdict according te the law and the evidence. Affirmed. Tho forgery mentioned appears to have resulted in a leas of funds Saints, widely knswn as irt to the Church of Jesue Christ of Latter-da- y the Mormon Church. Both the defendant and hie counsel are members of the ('hurch of Jesus Christ of Latter-da- y Saints (commonly referred to as Mormons); and if there is any basis in fact to the claim of religious bias, one would think that the defendant would be happy to have hie brethren in the jury box. Crockett, Chief Justice, concurs in the .oru.urring opinion of Mr. Ellett. Ns. 12104 |